No more than 600 pounds of gunpowder may be kept in any building

in London or Westminster or suburbs thereof. Later, no more than

200 pounds of gunpowder were allowed to be kept therein for more

than 24 hours. Buildings may be searched on "reasonable cause"

shown to a Justice of the Peace. Later, no more than 400 pounds of

gunpowder could be kept for more than 24 hours near any town, or

more than 300 pounds for more than 24 hours in any place. Then no

gunpowder could be conveyed by land over 25 barrels or by water

over 200 barrels.

It was customary for officers to take the oaths of allegiance and

supremacy to any new monarch. When George I became king in 1714,

all civil and military officers, clergy, schoolmasters, and

lawyers, solicitors, clerks, etc. living within 30 miles of London

had to take an oath of allegiance and a new oath that the person

was not Papist and agreed that no foreigners had jurisdiction in

the realm, such as to excommunicate someone and thus declaring he

could be legitimately killed. Soon after, it was required that

Papists had to register their names and real estates.

Commissioners were appointed to make inquiries. If a person did

not take the oaths or did not register, he was to forfeit 2/3 of

his land to the king and 1/3 to a Protestant who sued for such.

This was in order to deter future rebellions against the king and

efforts to destroy the Protestant religion.

Papists enlisting in the army are liable to corporal punishment,

but not death, as determined by a court martial.

Any mayor, bailiff, or other magistrate who is present at any

meeting for public worship other than the Church of England will

lose office and is barred from any public office or employment.

As late as 1722, there was a Papist conspiracy to take the Tower

of London and the King, and make a Catholic king. This resulted in

the imprisonment of the conspirators and a new statute: Persons

not taking the oath of allegiance and above oath that they were

not Papist shall register their lands and yearly rents and pay

double the land tax and 100,000 pounds. After payment, they are

discharged from forfeiting 2/3 of their lands' rents for one year.

Jews may not refuse suitable maintenance to their children who are

Christian to pressure them to convert back to Judaism.

In 1712 was the last execution for witchcraft. By statute of 1736,

witchcraft, sorcery, enchantment, and conjuration were abolished

as crimes.

Black slaves were common for a time in London. This was a result

of the voluminous triangle trade of manufactured goods from

England, slaves from West Africa, and sugar and tobacco from the

West Indies. Slavery was largely abolished by judicial decision of

Chief Justice Mansfield in 1772.

If a sheriff does not answer for money collected for the

Exchequer, he shall forfeit treble damages to the aggrieved

person, double the sum missing to the aggrieved person, 100 pounds

to the king, and 100 pounds to the party who sues. If a sheriff

take a fee for levying or collecting money due to the king (except

4d. for an acquittance) or take a sum for not levying money due,

he is guilty of extortion, injustice, and oppression and shall

forfeit treble damages and costs to the aggrieved person, and

double the sum extorted to the aggrieved person. A sheriff may not

levy more than 12d. for every 20s. of yearly income of any manor

for up to 100 pounds of income, and 6d. for value over 100 pounds.

No one may cut pine trees that are fit for masts of ship in New

England without license by the Queen or forfeit 100 pounds. Later,

pine trees on private property were excluded.

Citizens of Great Britain may sue colonial debtors by oath before

British magistrates and a debtor's colonial lands and houses and

negroes may be used to satisfy his debts.

Anyone pretending to act under a charter and taking subscriptions

in Great Britain or the colonies must forfeit treble damages.

No hats, including beaver hats, may be exported from any colony

even to another colony because this has hurt British hat

manufacture. The penalty is 500 pounds. No one in the colonies

except present hatmakers who are householders and journeymen may

make hats unless they serve a seven year apprenticeship. No

hatmaker in the colonies may have more than two apprentices at

once.

Whaling ships near Greenland were prohibited from returning until

their hulls were full. Vessels built or fitted out in America may

engage in whaling.

Pig iron from the colonies may be imported free, but there may be

no mill for slitting or rolling iron and no plateing-forge or

other engine to work with a tilt hammer and no furnace for making

steel erected or used in the colonies or forfeit 200 pounds.

No paper bills of credit may be used in New England because such

have depreciated.

William Blackstone lectured on law at Oxford University in 1753.

As a result, the first professorship of English law was

established. His lectures were published in 1769 as the

"Commentaries on the Laws of England". They greatly influenced the

American colonists and were the basis of legal education in

England and America for years. They were comprehensive and covered

real property, crime and punishment, court procedure, contract,

corporations, and commercial law. He wrote "The Great Charter and

Charter of the Forest" in 1759.

- Judicial Procedure -

For actions under 10 pounds in a superior court and actions under

40s. in an inferior court, the offender shall be served with

process to appear in court rather than being arrested. For money

at issue, an affidavit shall be taken. No more money may be taken

for bail than the amount at controversy. This is to prevent

frivolous and vexatious arrests. Perjurers, forgers, those

involved in barratry or suborning perjury, and pretenders

practicing as attorneys or solicitors in the courts of law or

equity shall be transported for seven years to the American

colonies. Unqualified people acting as attorneys or solicitors in

the county court shall forfeit 20 pounds.

No one may practice as an attorney in the courts of King's Bench,

Common Pleas, or Exchequer until he has been examined by a judge

of such court on his fitness and qualifications and has taken the

oath to honestly demean himself and practice according to his best

knowledge and ability. The same applies to a solicitor in the

equity courts. This shall not exclude persons who have been bound

to an attorney or solicitor for four years. Attorneys and

solicitors, with consent of an attorney of another court, may

participate in proceedings of such other court. No attorney may

have more than two clerks bound to him at one time. Attorneys may

be admitted as solicitors and vice-versa.

There were twelve common law justices of the Court of the King's

Bench, Court of Common Pleas, and Court of the Exchequer. The

Chief Justices of all of these courts were paid partly from fees

paid to the court. The other Justices of these courts were paid

completely by salary, which in 1759 was well over 500 pounds per

year. These justices were to continue in office even after a king

died and could be removed only for good cause upon the address of

both houses of Parliament. The officers of these courts were

attorneys. There was one justice at Doctors' Commons. The two

chancery justices (since Edward I) were the Lord Chancellor and

the Master of the Rolls. The salary of the eleven masters of the

court of chancery in 1765 was 400 pounds per year. The officers of

this court were solicitors.

Appeals from the Exchequer could be made to a court of the King's

Bench and Common Pleas combined. Appeals from Common Pleas could

be made to the King's Bench. Decisions of the King's Bench and

other common law courts could be appealed to Parliament.

The common law courts rode circuit twice a year in five circuits

and once a year in the north circuit. So an accused person could

spend up to a year in gaol waiting for trial. Few prisoners were

granted bail. In each common law court, the law justices in banc

would hear demurrers [contentions that the other party was wrong

in the law]. No one with an interest in a suit, including the

plaintiff and the defendant, could give evidence. There was no

power to amend pleadings, so misspelling of the defendant's name,

for instance, could result in dismissal of the suit. In 1730, the

pleadings and indictments ceased to be in Latin. Compurgation

still existed for debt and detinue.

Writs of error at variance from the original record or otherwise

defective may be amended to correct the defect by the court where

such writ is returnable. No judgment is to be reversed for any

defect in any bill or writ, excepting an appeal of felony or

murder, or misdemeanor. This is to prevent delays of justice.

Justices of the Peace may correct defects of form on appeals to

them.

Plaintiffs neglecting to go to trial after an issue has been

joined may be nonsuited.

The qualification for jury service is having land with an income

over rents of at least 20 pounds, with leases for 500 years or

more, or 99 years, or any term determinable on one or more lives.

Being a freeholder is not necessary. In London, the qualification

is being a householder and having lands to the value of 100

pounds. No sheriff may excuse a qualified person from jury service

for money or other reward. Selection of jurors for each case is to

be done by some indifferent person pulling their names from a box.

Later, persons refusing jury service could be fined.

Poor persons may be paid up to 6d. to give evidence against

felons.

Pirates may not be tried again for the same crime or for a certain

crime and high treason. When the marine force was raised, the

marines were also given protection from double jeopardy.

In Chancery, a plaintiff filed a complaint and interrogatories

prepared by counsel. Only in Chancery could there be discovery.

The interrogatories were addressed by court officials to witnesses

without the presence of the parties or their lawyers. Officials

wrote down the answers in their own terms. So there was no cross-

examination possible. Most decrees took many years to be made.

The ordinary administrative court of first instance is that of one

or two Justices of the Peace who issue orders in matters of public

safety, public order, public morals, health, the poor, highways,

water, fields, forests, fisheries, trade, building, fire, begging,

and vagrancy. He examined suspicious persons and issued warrants

for the removal of persons likely to become a public charge. The

Justice of the Peace also regulates wages, servants, apprentices,

and day laborers. In his judicial capacity, he tried all crimes

and felonies except treason, though in practice death penalty

cases were transferred to the assize justices. The Justices of the

Peace of a hundred hold special sessions such as for appointment

of parochial officers, highway disputes, and the grant of wine,

beer, and spirit licenses. The appointment of overseers of the

poor, authorization of parish rates, and reading of the Riot Act

to mobs to disperse them, required more than one of the Justices

of the Peace of the hundred to participate. All the Justices of

the Peace of the county met four times a year at Quarter Sessions

to hear appeals from penal sentences, to determine the county rate

of tax, to appoint treasurers of the county and governors of the

county prison and house of correction, to issue regulations on

prices of provisions and on wages, to settle fees of the county

officials, to grant licenses for powder-mills and other

industries, to hear nuisance complaints such as those against

parishes for failing to keep their roads in repair, to make

regulations for the holding of markets, to hear complaints

concerning local government, and to register dissenting chapels.

In more and more matters specified by statute, the Quarter

Sessions heard appeals from the orders of the individual Justices

of the Peace instead of common law courts hearing them by writ of

certiorari. The writ of certiorari allows administrative decisions

to be reviewed by the common law courts for compliance with law,

competency of the court, and interpretation of the administrative

law. The writ of habeas corpus appealed administrative decisions

to imprison not only after arrest for criminal proceedings, but

any coercive measure for enforcing an administrative order. The

writ of mandamus was available for enforcing the injunctions of

administrative law against towns, corporations, and all other

authorities and private persons, where the ordinary punishments

were insufficient. Justices of the Peace in rural areas were

squires and in towns aldermen.

In 1747, Justices of the Peace were authorized to decide issues

between masters and mistresses and their employees who were hired

for at least one year. If a servant misbehaved, they could

authorize reduction of wage, discharge, and hard labor at a house

of Correction up to one month. If a servant was not paid, he could

authorize payment of wages up to 10 pounds for an agricultural

servant, and up to 5 pounds for an artificer, handicraftsman,

miner, collier, keelman, pitman, glassman, potter, or ordinary

laborer. Later, tinners and miners were added to the last

category. In 1758, employees of less than a year were included.

In 1775, Justices of the Peace were authorized to administer any

oath for the purpose of levying penalties.

To be a Justice of the Peace, one must have income of 100 pounds a

year from a freehold, copyhold, or customary estate that is for

life or for a term of at least 21 years, or be entitled to a

reversion of lands leased for 1 or 2 or 3 lives, or for any term

of years determinable on the death of 1 or 2 or 3 lives. Excepted

were peers, justices, and heads of colleges or vice chancellors at

the universities. The Justices of the Peace were selected by the

superintending Sheriffs and Lords Lieutenant, the latter of whom

were usually peer with a ministers' office or a high court

official. No attorney or solicitor or proctor could be a Justice

of the Peace unless the locality had Justices of the Peace by

charter.

A request for Certiorari for removal of convictions, judgments,

orders made by Justices of the Peace must be made within six

months and after notice to the Justice of the Peace who may argue

cause against granting certiorari.

In the common law courts, trespass in ejectment served the

purposes of most of the actions involving land. Assumpsit covered

the whole province of debt, and much more. Trover more than

covered the old province of detinue. Trespass still served for all

cases in which the defendant had been guilty of directly applying

force to the plaintiff's body, goods or chattels. Trespass on the

case covered miscellaneous torts. Replevin was still used.

Covenant remained in use for the enforcement of promises under

seal. Account gradually came under the equity jurisdiction of

Chancery. Common law writs of dower are largely superseded by the

relief given to the doweress in the courts of equity, where new

and valuable rights were given to her and to her personal

representatives against the heir and his representatives. The

actions of indebitatus assumpsit is being extended to actions upon

quasi-contract, in which the element of contract is not required

e.g. quantum meruit, where a contract is implied from the facts of

the case.

Mercantile law was developed by the common law courts, especially

the King's Bench.

The king was to appoint the marshal of the King's Bench. The

marshal was to select his inferior officers to hold office as long

as they "behave themselves well within". These offices had been

sold by James I to a certain person, his heirs, and assigns. The

marshal was to keep the prison of this court in good repair from

his fees and profits of office.

The office of sheriff was now an accessory department of the

common law courts for summons, executions, summoning the jury, and

carrying out the sentence of the law.

Summons for excise offenses may be left at a person's abode,

workhouse, or shop as well as on his person.

The coroner's office now investigated unusual deaths with a jury

from the neighborhood elected by county freeholders.

The last beheading was of a Scottish lord in 1747; he had been

involved in an attempt to restore the Stuarts to the throne. So

many people came that some overcrowded bleachers fell down and

crushed about 20 spectators. Henceforth, every sentence of death

was by hanging, even for peers.

In 1772, the process of pressing a man to death, if he refused to

plead to an indictment was abolished. In 1772, persons accused or

indicted, in Great Britain or America, of felony or piracy who

stand mute shall be convicted of such charge. Property of a felon

was still forfeited to the crown.

From 1749 on were established special procedures for speedy

decisions in local courts in some areas for debts or damages under

40s. and imprisonment for such was limited for up to three months.

Otherwise, sentences were longer, and debts grew during the time

in prison. When prisons were overcrowded, Parliament let the

inmates out if they gave up their possessions. They could go to

Georgia.

In 1763, the homes of John Wilkes and others were searched for a

seditious and treasonous published paper and all related papers

because they had been rumored to have some relationship to the

conception, writing, publication, or distribution of the paper.

Wilkes had such papers and was convicted of libel. He countersued

for damages due to criminal trespass. The court held that general

search warrants were subversive of the liberty of the subject of

the search in violation of the British Constitution, declared the

statute void, and found for Wilkes. The Court of Common Pleas

agreed on appeal and put the burden of proof on the persons

searching to justify the search warrant. His decision gave support

to William Pitt's assertion that "every man's home is his castle".

There were felons' prisons and debtors' prisons. Sometimes they

were one and the same. There was much fighting among inmates. The

inmates slept on hay if lucky. There were no washing facilities

and little light. Counties or friends paid for their bread. They

were also sold beer, which made them drunk and riotous. The sale

of beer was a recognized and legitimate source of profit to the

keeper. This was remedied by statute of 1760 that no sheriff or

other officer may take an arrested person to a tavern or other

public house or charge him for any wine, beer, ale, victuals,

tobacco or other liquor without his consent and shall allow

prisoners to be brought beer, ale, victuals, bedding, and linen as

the prisoner sees fit. Sheriffs often kept people imprisoned

unless and until they paid all their fees due to the sheriff. In

1772 was founded the Society for the Discharge and Relief of

Persons Imprisoned for Small Debts for those inmates unfortunate

instead of fraudulent or extravagant. Legacies were often made to

debtors. There was much Gaol Distemper fever with fatal

consequences. When John Howard, a grocer who had inherited wealth,

but poor health, became a sheriff, he visited many gaols. When he

saw the squalid conditions there, he advocated hygenic practices.

In 1774, Justices of the Peace were authorized to order walls and

ceilings of gaols to be scraped and washed, ventilators for

supplies of fresh air, a separate room for the sick prisoners,

commodious bathing tubs, provision of clothes for prisoners,

keeping of prisoners not below the ground, and apothecaries at a

stated salary to attend and to report the state of health of

prisoners.

In 1773, clergymen were employed in gaols to alleviate the

distress of prisoners and to contribute to morality and religion.

Also, no longer may any fees be taken by gaol keepers or sheriffs

because persons not indicted or found not guilty have been kept in

prison pending payment of such fees. Instead, the counties shall

pay to gaol keepers up to 13s.4d. per prisoner so discharged.

There was much Gaol Distemper fever with fatal consequences, so in

1774, Justices of the Peace were authorized to order walls and

ceilings of gaols to be scraped and washed, ventilators for

supplies of fresh air, a separate room for the sick prisoners,

commodious bathing tubs, provision of clothes for prisoners,

keeping of prisoners not below the ground, and apothecaries at a

stated salary to attend and to report the state of health of

prisoners.

Colonials acts which infringed upon the English common or

statutory law, or were against the interests of other American

colonies were submitted to the Privy Council, which allowed or

disallowed them. Appeals from the colonial courts came to the

Privy Council.

Judges in the colonies were appointed by royal governors and paid

by colonial legislatures. They served at the pleasure of the king.

Colonial courts included superior courts of judicature, courts of

assize, general gaol delivery, general sessions of the peace,

inferior court of common pleas, and commissions of Oyer and

Terminer. There were also Justices of the Peace, marshals,

provosts, and attorney generals. There were few cases of vagrancy,

theft, or homicide. This may have been because the people were few

and dependent on each other, and economic opportunities were

great.

In 1735 John Peter Zenger, printer of the New York Weekly Journal,

was tried for seditious libel for its criticisms and satire of the

New York governor, who exceeded his powers, such as by demanding

that bills from the assembly be presented to him before the

council, and by arbitrarily displacing judges. Seditious libel was

defined as "false, scandalous, and seditious" writings.

Traditionally, this word "false" could mean "disloyal". The

prosecution argued that truth of such criticism was an aggravation

of the crime because it was more provoking of sedition, as found

by Star Chamber cases. The defense argued for a right publically

to remonstrate abuses of power by public officials to guard

against violence and destruction of liberties by men in authority.

The American jurors, who were supposed to be familiar with the

facts pertinent to the case, knew the truth of the paper's

criticisms. They agreed with the defense that the word "false" in

the definition: "false, scandalous, and seditious" writings, to

mean "untrue" instead of "disloyal". So truth became a defense to

seditious libel. Pamphletts describing the Zenger trial and

acquittal were published and republished in London and the

colonies.

Benefit of clergy was available in the American colonies to all

who could read and write. It could be used in trials for

manslaughter.

- - - Chapter 19: Epilogue - - -

Our Legal Heritage : 600-1776 King Aethelbert - King George III · 第 64 / 66 段